It is always a difficult time when a loved one or close friend passes away. It can be even harder when you are trying to navigate the legalities that come with their passing. Some questions that are likely to arise are:
- Did they have a will?
- Did they appoint an executor?
- Even if they had a will – do I need to obtain a Grant of Probate?
- What do I do if they didn’t have a will?
- Who needs to arrange their funeral?
- Did they have any tax to pay?
Every Estate is different and some may be more complex than others. For that reason, it is important that you seek legal advice in relation to the administration and management of the Estate.
Probate and Letters of Administration
In some cases, the assets owned by the deceased person may only be jointly held assets. In that case, it is unlikely that you will need probate, as the assets will revert to the other asset holders. If the assets are individually held, but are of nominal or small value, you may not need probate. You may still need to register a Notice of Death and notify all relevant organisations and government departments that the deceased has passed away.
Where this isn’t the case and a Grant of Probate is required, then you must apply to the Supreme Court for a Grant of Probate – or where there is no will, Letters of Administration.
Separate rules apply where a person has died without a will (or intestate). The Court will also require you to answer a number of questions to ensure that all entitled persons receive their rightful share in the Estate where there is no will.
Whether you seek Administration or Probate, you must always act in the best interests of the Estate and ensure that you satisfy all legal obligations of the Estate. It is important that you seek legal advice when navigating this process because of the serious personal liability that befalls the Executor. Executors can be personally liable for breach of fiduciary duty, or a failure to properly administer the Estate and obtaining legal advice assists in mitigating this risk.
Shire Legal can assist in preparing the relevant documents to be lodged with the Court, as well as the required legal notices that need to be published online. We can also assist in distributing and administering the Estate. Where you need to sell any real property owned by the Estate, Shire Legal are also able to assist with the conveyance of such a sale - we can even assist you with putting the property on the market prior to probate being granted (read our blog here).
Disputing a burial plot licence (April 2020)
What will be accepted as an informal Will? (February 2020)